Microsoft says software that's licensed under a new version of a popular open source license isn't covered by the patent protection deal it recently signed with desktop Linux distributor Linspire. In a posting on its Web site, Microsoft said the Linspire client software protected by the patent deal doesn't include any parts of the distribution that "comprise or include Foundry Products, Clone Products, GPLv3 Software, or Other Excluded Products." The document was published on July 5, three weeks after Microsoft struck a deal with Linspire through which Linspire's customers are indemnified against Microsoft's patent claims against Linux users.
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Member since:2007-02-17
This is not the way it works. Microsoft have no contract with the authors and copyright holders of FOSS software. Microsoft has no contract with, for example, the GNU Foundation, which is the copyright holder for about a quarter of the code that goes into any Linux distribution.
So, Microsoft are giving out vouchers for copyrighted works (parts of the Linux distribution called SuSe). What gives Microsoft the right or permission to do that? The GPL gives them the permission (not the right) ... provided Microsoft stick to the terms of the GPL.
If Microsoft do not stick to the terms of the GPL, then they are, without permission of the authors, giving out vouchers for copyrighted works which they do not own.
That is a nono. There are laws against that. Microsoft are criminally liable if they do that.
Member since:2006-05-26
I believe that how Microsoft will argue it is that the vouchers aren't exactly for a distributed copy of the works in question that they distribute (that's what the companies that signed this deal do, not Microsoft, exactly), so much as it is a piece of paper saying "As long as you've gotten your software with this piece of paper, we will not go after you legally for patent infringement or anything we might claim is ours" or in otherwords, it can be thought of as a patent/IP rights licensing deal.
I also can see Microsoft arguing "Not only did we not agree to the terms the GPLv3 would force on us, but we can't be forced into violating the law by such an agreement being forced on us: thus, the agreement does not have any legal enforceability" and thus neatly stepping out of that with that escape clause. This is the sort of thing that in the US is explicitly stated in Landlord/Tenant laws as regards leases: nothing can be placed in a lease that would otherwise violate the laws, as that is unenforcible.
I say, break out the popcorn, and see if this patent cold war continues in much the same way the Cold War between the US and Russia went for so long: it was predicated on the concept of MAD (Mutually Assured Destruction) whereby the building of all the weapons was intended to only be used only if the other side stepped over the bounds expected, ensuring that even if they offensively attacked first, they could be sure that there would be no value in their "victory" that they wiped out their enemy. That's how I think this is likely to go long-term.
Member since:2006-01-28
No is trying to subject Microsoft to the GPL3. All they have to do is never sell or release a version of Linux through coupons or in any other way that contains GPL3 software.
Just like Microsoft's own software, there will be a license attached to some software, which Microsoft can choose to release or not at their leisure.
But if they do release it, they will be bound by it as the GPL is a distribution license and pleading ignorance doesn't work for a corporation the size of Microsoft.
Member since:
2006-05-26
It's largely a high stakes game of poker. I would be surprised if Microsoft didn't show at least one patent they were confident they could win on, perhaps something they've already tested in court, to the people that matter that they made the deals with. At least, that's how I would go about it. Granted, software patents aren't respected everywhere, but if they're respected enough in a large enough portion of the market for software, does it matter all that much?
Thus, I strongly suspect that this will come to legal blows, and it won't be pretty. I won't try to predict who would win, as I don't have enough information (I'm speculating in the previous paragraph, but it makes enough sense that it could be truth) but I do know with certainty that in US law (which is at least one major market where software patents are respected) you can't be forced into new terms of a contract that you didn't sign up for, and it may even be possible that Microsoft won't have to disclose all of their patent claims in court, as it would only require a single patent that the court doesn't knock down for the whole arrangement to have meaning.
So, I don't think this will harm Microsoft in any real way: they aren't beholden to GPLv3 with the deal they made, if only because you can't change terms of a contract after the fact in US law without all parties agreeing to it, and that's what anyone that's had any real experience in US law and business will tell you: it may not matter much about the other details, because that one trumps them all.